1.The
original contesting parties are dead. They are now represented by their legal
representatives. This is not unusual when litigation goes on for more than 25
years.

2.These
two appeals, one by the legal representatives of Kammana Sambamurthy (original
plaintiff) and the other by legal representatives of Kalipatnapu Atchutamma
(original defendant no. 2) are directed against the judgment and decree dated
December 23, 2002 passed by the High Court of Judicature, Andhra Pradesh, at
Hyderabad. The High Court modified the judgment and decree dated July 2, 1991
passed by the Subordinate Judge, Anakapalli in a suit for specific performance
of the contract. The husband of defendant no. 2 - Kalipatnapu Kamaraju - was
original defendant no. 1; he is also dead. For convenience, we shall refer to
the original plaintiff, `the vendee'; the original defendant no. 1, `the
vendor' and the original defendant no. 2, `the vendor's wife'. The facts, as we
find them, are shortly as follow.

3.On
February 19, 1984, the vendor entered into an agreement of sale (for short,
`the agreement') with the vendee in respect of a tiled house consisting of six
rooms, verandah, three mulgis upstair portion consisting of one room, hall and
verandah inclusive of entire area pertaining to the house along with the entire
vacant site situate in door no. 9.118 bearing assessment 116 at village
Payakaraopet, District Visakhapatnam (for short, `the property') for a
consideration of Rs. 1,00,000/-. The vendee paid Rs. 10,000/- in advance and
the remaining consideration of Rs. 90,000/- was agreed to be paid at the time
of execution and registration of the sale deed. The vendor in the agreement
represented that he was absolute owner of the property. The agreement reads as
follows :

" SALE AGREEMENT
DATED 19-2-1984 Absolute Sale Agreement for Rs. 100000/- (Rupees one lakh) in
respect of the immovable property i.e. tiled house, building upon the tiled
house inclusive of entire vacant site pertaining to the house got executed and
delivered on 19-2-84 in favour of Kommana Samba Murthy S/o Kommana Adaiah r/o
Namavaran Village, Nekkapalli Tq. Visakhapatnam District.

II. As regards the property
mentioned in para no. III in schedule hereunder wherein I have possessed
absolute right and enjoyment and which fell to my share in the partition
effected in respect of immovable property with my brothers about forty years
back and ever since has been in my possession and enjoyment and situated in
southern row of G.N.T. road of Payakaraopet village i.e. the tiled house, six
rooms, verandah, 3 mulgis upstair portion consisting of one room, hall and
verandah inclusive of entire area pertaining to the house along with the entire
vacant site there of belonging to me. I have settled to sell the same to you
for the reason that I attained old age and did not have any male children and with
intention to spend my rest of life with any one of my daughters and thinking
that it is better to augment the cash balances as you offered today higher
price, then I agreed there to and settled to sell the property to you.

Having regard for a
sale consideration of Rs. 100000/- (Rupees one lakh only) this agreement of sale
has been executed and delivered to you. Out of the sale consideration you have
paid Rs. 10000/- as advance in the presence of undersigned witnesses at the
time of execution of this sale agreement and the same was received by me.
Therefore starting from this date you are requested to pay by 20-6-84 the
balance sale consideration of Rs. 90000/- payable to me and shall get the sale
deed executed as per your plan on your name or the name chosen by you on a
proper stamp paper and shall get the same registered and delivered to you at
your expense. Having assured you to the effect that excepting me, none have got
any right over this property and having proved that the measurements,
boundaries and circumstances in respect of the property are proper and correct and
that this property had not been subjected to any alienation by way of mortgages
etc. and that it is an undisputed property and after making you to so believe
this sale agreement has been executed and delivered to you. The say situated on
the rear side of the house i.e. an extent of 3.9 feet in width and 91 feet in
length happens to be the common passage to this property and also to Nudala
Chekeenam Chokka Rao. As requested by you I shall obtain the witness signatures
of my daughters who are near to me and those who are living in far of areas, I
shall get their voluntary consent letters in your favour.

III. Situated in door
No. 9.118 bearing assessment 116 a tiled house consisting of six rooms,
verandah, 3 mulgis, upper terrace portion consisting of a room, hall and
verandah together with entire vacant site there of situated in southern row of
G.N.T. road of Payakaraopet village and which has been included in Payakaraopet
grama panchayat limits in Nekkapalli Tq. Visakhapatnam District and the
boundaries whereof are as follows :- 4 East : 196 feet vacant site belonging
to Venkata Ramalinga Swamy and others South : 54 feet houses belonging to Nemmi
Gouraiah and others West : 196 feet house, site belonging to Bekivalla Bapi
Raju North : 37 feet, G.N.T. Road.

The house and vacant
site comprising within the aforesaid boundaries has been sold to you. This is
the absolute sale agreement get executed and delivered with my consent."

4.On
March 24, 1984, the vendor's wife sent a notice to the vendee as well as vendor
calling upon them to cancel the agreement as she held half share in the
property having devolved upon her on the death of her son K. Appala
Suryanarayana Murthy. She stated in the notice that she was not willing to sell
her share and was ready to purchase the share of the vendor (her husband).

5.On
March 28, 1984, the vendee replied to the notice sent to him by the vendor's
wife and asserted that the agreement was binding on her and the notice has been
given in collusion with the vendor. 5

6.On
March 30, 1984, the vendee sent a notice to the vendor calling upon him to
receive the balance sale consideration of Rs. 90,000/- from him and execute the
sale deed along with his wife (if she has any right in the property) as per the
terms of the agreement failing which he may be constrained to initiate action
for necessary reliefs.

7.On
April 21, 1984, the vendor sent reply to the vendee's notice dated March 30,
1984 informing him that he was unable to execute sale deed in the vendee's
favour and he may take back sum of Rs. 10,000/- that was paid in advance.

8.The
vendee then filed a suit for specific performance of the agreement against the
vendor and his wife. He prayed for a direction to them to execute sale deed as
per the terms of the agreement and get it registered after taking the remaining
sale consideration of Rs. 90,000/- and if they fail to execute the same as per
the directions of the court, then court may execute the sale deed after the
vendee deposits the balance sale price within time allowed by the court. In the
alternative, the vendee prayed for refund of the advance amount along with
interest.

9.The
vendor and his wife filed separate written statements. The vendor admitted
execution of agreement and receipt of advance amount of Rs. 10,000/-. The
vendor averred that he had one son, K. Appala Suryanarayana Murthy who had half
share in the property; he died intestate and after his death, his half share
devolved upon his wife and thus he does not have absolute title to the property
and unable to execute the sale deed.

10.The
vendor's wife mainly set up the plea that her son died intestate and she
succeeded to his share; her husband is not the absolute owner of the property;
she is not willing to part with her share and she has already asked her husband
to sell his share to her.

11.The
Subordinate Judge, Anakapalli in light of the pleadings of the parties framed
issues and after recording the evidence and hearing the parties decreed the
suit in the following manner :

"In the result,
the suit is decreed with costs and with a direction that the defendants 1 and 2
shall execute registered sale deed as per the terms of the sale agreement dated
19-2-84 in favour of the plaintiff after taking the remaining sale
consideration of Rs. 90000/- on or before 2-9-91 at the costs of the plaintiff
and the plaintiff is hereby directed to be get ready with the remaining sale
consideration by Rs. 90000/- and 7 expenses for registration on or before
3-9-1991 by informing the defendant for its registration......."

12.The
vendor's wife being not satisfied with the judgment and decree dated July 2,
1991 passed by the Subordinate Judge, Anakapalli preferred first appeal before
the High Court. The High Court in view of the contentions raised before it
formulated the following points for determination :

"1) Whether the
suit house is the ancestral property of the first defendant? 2) Whether the
suit house contract of sale binds the second defendant? 3) Whether the second
defendant has got the right to purchase the half share of the first defendant?
4) Whether the suit contract of sale is not voidable having been made by the
ostensible owner, the first defendant and as the plaintiff acted in good faith?
5) To what relief?"

13.The
High Court recorded the findings namely, that on the basis of the factual
matrix and the evidence adduced by the defendants, it was made out that the
vendor and his wife had a son who died intestate and that the property was
ancestral property in which the deceased son had half share and that share 8
devolved upon the vendor's wife; the vendee cannot be said to have any
knowledge that the vendor's wife had half share and in the absence of any
express authority from his wife, the vendor could not alienate or otherwise
dispose of her share in the property. The High Court did not accept the plea of
the vendee that vendor had implied authority or that vendor's wife was estopped
from raising the plea that the agreement did not bind her. The High Court
finally held that the agreement of sale although covered the entire property
but as the vendor had only half share and interest in the property, the decree
for specific performance could only be granted to the extent of the vendor's
share in the property. The High Court, accordingly, allowed the appeal
preferred by vendor's wife to the extent of half share in the property and the
judgment and decree of the Subordinate Judge was confirmed to the extent of
half share of the vendor in the property.

14.We
heard Mrs. Sudha Gupta, learned counsel for the legal representatives of the
vendee and Mr. A.T.M. Sampath, learned counsel for the legal representatives of
the vendor's wife.

15.Mr.
A.T.M. Sampath, learned counsel for the vendor's 9 wife would have us believe
that the agreement is not an agreement of sale but an invitation to offer as it
is only signed by the vendor. We are not impressed. That the agreement is an
agreement of sale and there has been concluded contract in this regard between
the vendor and vendee has not at all been in dispute. The vendor in his reply
dated April 21, 1984 to the notice received from the vendee did not dispute the
nature of the agreement. In the plaint, the vendee made the following averment
with regard to the agreement:

".......The 1st
defendant offered to sell the plaint schedule house and site representing that
he has got absolute title in them and that no others have got title in the said
property. The plaintiff accepted to purchase the property after making due
inquiries. After mutual deliberations the plaintiff offered to purchase the
suit schedule property for one lakh rupees. The first defendant executed sale
agreement on 19-2-1984 in favour of the plaintiff, agreeing to sell the suit
property to plaintiff for the said sum of one lakh and also agreeing to receive
the balance of consideration on or before 20-6-1984 and to execute registered
sale deed at the expense of the plaintiff in favour of plaintiff or to his
order and also undertaking to get his daughters and make them attest the sale
deed. The plaintiff paid Rs. 10000/- (Rupees ten thousand only) as advance at
the time of the said sale agreement. The first defendant undertook to deliver
possession of the suit schedule property on the date of sale deed......."

10 The vendor filed
written statement and therein he admitted execution of the agreement in the
following words :

".....The
averments that this defendant executed a sale agreement on 19-2-1984 in favour
of plaintiff offering to sell the schedule house and site for a sale
consideration of Rs. 100000/- (one lakh) agreeing to receive the balance of
sale consideration on or before 20-6-1984 and to execute a sale deed at the
expense of the plaintiff and that on the date of sale agreement received an
amount of Rs. 10000/- towards sale consideration are true....."

16.As
a matter of fact, in view of the admitted position between the parties,
particularly, the vendor and vendee about the agreement, no issue was struck by
the trial court in this regard nor any argument was advanced on behalf of the
vendor before the trial court that the agreement was not an agreement of sale
or that the same did not tantamount to concluded contract. Insofar as vendor is
concerned, he did not challenge the judgment and decree passed by the trial
court. It was only vendor's wife who filed appeal being not satisfied with the
judgment and decree dated July 2, 1991 passed by the Subordinate Judge before
the High Court. Even before the High Court, no plea was raised by the vendor's
wife or the vendor that 11 the agreement is not a concluded contract for sale
of the property. The submission of Mr. A.T.M. Sampath that the agreement is not
an agreement of sale but an invitation to offer is afterthought and does not
merit further consideration.

17.As
to whether the property is ancestral property or not, the finding of the two
courts is divergent. The trial court held that the property was not the
ancestral property but the High Court on reappraisal of the evidence did not
agree with that finding. The High Court considered the matter thus :

".......Whatever
may be the reason behind in getting Ex.A2 notice issued while seeking to avoid
Ex.A2 transaction, the legal position cannot be doubted that half share in the
suit house was devolved upon the second defendant on account of the death of
her son, in as much as by birth, the son got half share along with his father
in the ancestral property and the mother succeeded to the same as Class I heir.
It is also clear that under section 14 of the Hindu Succession Act, the share
devolved upon the mother would become the Streedhana property. The husband
under such circumstances, in the absence of any express authority from the wife
cannot alienate or otherwise dispose of the Streedhana property of his
wife......."

In our view, the High
Court has considered this aspect in the right perspective and we find no
justifiable reason to take a view different from the High Court.

18.Having
regard to the conclusion that the vendor's wife has got half share in the
property and that she is not executant to the agreement, what needs to be
considered is, whether the agreement binds the vendor's wife. According to
vendee, the vendor had implied authority to enter into agreement of the
property and the vendor's wife was clearly aware of that agreement and,
therefore, she is estopped from raising the plea that she is not bound by that
agreement. The High Court considered the evidence on record and held that no
express or implied authority by the wife in favour of her husband is
discernible from the facts and evidence. We agree. As regards applicability of
Section 41 of the Transfer of Property Act, 1882 (T.P. Act), the High Court
observed that it was not even the case of the vendee that the vendor was the
ostensible owner of the property and, therefore, Section 41 has no application.
We think that High Court is right and in view of the aforenoticed findings of
the High Court, the conclusion that vendee is not entitled to seek specific
performance of the agreement to the extent of half share of vendor's wife
cannot be faulted. 13

19.The
crucial question in the case is whether the agreement could be enforced against
the vendor to the extent of his half share in the property. The terms of the
agreement show that the vendor represented to the vendee that he was absolute
owner of the property that fell to his share in the partition effected with his
brothers and he did not have any male child. The vendor assured the vendee that
excepting him none has got any right over the property and he would obtain the
witness signatures of his daughters and get their voluntary consent letters in
his favour. It is clear from the evidence that the vendee had no knowledge that
vendor's wife has half share in the property which devolved upon her on the
death of her son intestate.

20.Section
12 of the Specific Relief Act, 1963 reads as follows :

"S.- 12.
Specific performance of part of contract.- (1) Except as otherwise hereinafter
provided in this section, the court shall not direct the specific performance
of a part of a contract. (2) Where a party to a contract is unable to perform
the whole of his part of it, but the part which must be left unperformed by
only a small proportion to the whole in value and admits of compensation in
money, the court may, at the suit of either party, direct the specific
performance of so much of the contract as can be 14 performed, and award
compensation in money for the deficiency. (3) Where a party to a contract is
unable to perform the whole of his part of it, and the part which must be left unperformed
either- (a) forms a considerable part of the whole, though admitting of
compensation in money; or (b) does not admit of compensation in money; he is
not entitled to obtain a decree for specific performance; but the court may, at
the suit of the other party, direct the party in default to perform
specifically so much of his part of the contract as he can perform, if the
other party- (i) in a case falling under clause (a), pays or has paid the
agreed consideration for the whole of the contract reduced by the consideration
for the part which must be left unperformed and a case falling under clause
(b), pays or had paid the consideration for the whole of the contract without
any abatement; and (ii) in either case, relinquishes all claims to the performance
of the remaining part of the contract and all right to compensation, either for
the deficiency or for the loss or damage sustained by him through the default
of the defendant. (4) When a part of a contract which, taken by itself, can and
ought to be specifically performed, stands on a separate and independent
footing from another part of the same contract which cannot or ought not to be
specifically performed, the court may direct specific performance of the former
part."

21.Section
12 prohibits specific performance of a part of a contract except in the
circumstances under sub-sections (2), (3) 15 and (4). The circumstances
mentioned in these sub-sections are exhaustive. Is Section 12 attracted in the
facts and circumstances of the present case? We do not think so. The present
case is not a case of the performance of a part of the contract but the whole
of the contract insofar as the vendor is concerned since he had agreed to sell
the property in its entirety but it later turned out that vendor had only half
share in the property and his wife held the remaining half. The agreement is
binding on the vendor as it is without being fractured. As regards him, there
is neither segregation or separation of contract nor creation of a new
contract. In Kartar Singh v. Harjinder Singh & Ors.1, this Court was
concerned with a case where vendor--brother and a sister had each half share in
the suit properties. The agreement for the sale was executed by the brother
concerning the suit properties in which the sister had half share. The sister
was not executant to the agreement; rather she refused to accept the agreement.
The question for consideration before this Court was whether agreement could be
enforced against the vendor--brother to the extent of his half share. This
Court considered Section 12 and held as under :

1 (1990) 3 SCC 517
16 "5. We are, therefore, of the view that this is not a case which is
covered by Section 12 of the Act. It is clear from Section 12 that it relates
to the specific performance of a part of a contract. The present is not a case
of the performance of a part of the contract but of the whole of the contract
so far as the contracting party, namely, the respondent is concerned. Under the
agreement, he had contracted to sell whole of his property. The two contracts,
viz. for the sale of his share and of his sister's share were separate and were
severable from each other although they were incorporated in one agreement. In
fact, there was no contract between the appellant and the respondent's sister
and the only valid contract was with respondent in respect of his share in the
property.

6. As regards the
difficulty pointed out by the High Court, namely, that the decree of specific
performance cannot be granted since the property will have to be partitioned,
we are of the view that this is not a legal difficulty. Whenever a share in the
property is sold the vendee has a right to apply for the partition of the
property and get the share demarcated. We also do not see any difficulty in
granting specific performance merely because the properties are scattered at
different places. There is no law that the properties to be sold must be
situated at one place. As regards the apportionment of consideration, since
admittedly the appellant and respondent's sister each have half share in the
properties, the consideration can easily be reduced by 50 per cent which is
what the first appellate court has rightly done."

22.Kartar
Singh1 has been followed by this Court in Manzoor Ahmed Magray v. Ghulam Hassan
Aram & Ors2. In Manzoor Ahmed Magray2, this Court considered the matter in
the context of Section 15 of J & K Specific Relief Act, 1977 which is 2
(1999) 7 SCC 703 17 pari materia to Section 12 of Specific Relief Act, 1963.
This Court said :

".......Hence,
there is no bar for passing the decree for specific relief with regard to 1/3rd
or 2/3rds share owned by the contracting party for which he can execute the
sale deed. For the share of Ghulam Rasool (brother of Defendant 1) admittedly,
no decree is passed by the High Court. Dealing with the similar contention
where agreement was for sale of property belonging to a brother and sister each
having a half share, the Court in Kartar Singh v. Harjinder Singh held that
when the absentee vendor, for some reason or the other refused to accept the
agreement, there is no reason why the agreement should not be enforced against
the vendor who had signed and his property is identifiable by specific share.
The Court further held that such case is not covered by Section 12 of the Specific Relief
Act,
1963 which relates to specific performance of a part of a contract. Such type
of case would be the case of specific performance of the whole of the contract
so far as the contracting party is concerned. Further, whenever a share in the
property is sold the vendee has the right to apply for the partition of the
property and get the share demarcated. Hence there would not be any difficulty
in granting specific performance of the contract to the extent to which it is
binding between the parties."

23.In
the case of A. Abdul Rashid Khan (Dead) & Ors. v. P.A.K.A. Shahul Hamid
& Ors.3, this Court held that even where any property is held jointly and
once any party to the contract has agreed to sell such joint property by
agreement, then, even if the other co-sharer has not joined, at least to the
extent of his share, the party to the contract is bound to execute the sale
deed. In that 3 (2000) 10 SCC 636 18 case, the suit property originally
belonged to one Aziz Khan. On his death, his heirs under the Muslim law--nine
sons and two daughters inherited that property. The sons agreed to sell that
property to the first respondent therein. However, some dispute arose between
the parties and that necessitated the first respondent therein to file the suit
for specific performance in which the executants of the agreement as well as
the two daughters of Aziz Khan were impleaded as defendants. It was admitted
case that the daughters of Aziz Khan had not joined in the agreement of sale.
The trial court dismissed the suit by holding that the agreement was
indivisible and could only be enforced if the daughters of Aziz Khan agreed.
The first respondent therein preferred an appeal before the High Court against
the judgment and decree of the trial court. The High Court held that he had not
pleaded and proved that the daughters of Aziz Khan had agreed to sell the suit
property and hence, it cannot be held that the said agreement was by all the
heirs of Aziz Khan. The two daughters of Aziz Khan were held not bound by the
agreement. However, the High Court held that insofar as the executants of the
agreement (sons of Aziz Khan) were 19 concerned they were bound by it and
valid and enforceable contract existed between the first respondent and the
sons of Aziz Khan. The High Court, accordingly, granted decree for specific
performance to the extent of 5/6th shares which Aziz Khan's sons had in the
property. This Court affirmed the decree of the High Court and it was held that
plaintiff's suit for specific performance to the extent of 5/6th share was
rightly decreed by the High Court warranting no interference. While holding so,
this Court relied upon earlier decision in the case of Manzoor Ahmed Magray2.

24.In
view of the above decisions of this Court and the facts and circumstances which
have already been noticed by us, in our opinion, there is no impediment for
enforcement of the agreement against the vendor to the extent of his half share
in the property. However, Mr. A.T.M. Sampath, learned counsel for the vendor's
wife placed great reliance upon HPA International v. Bhagwandas Fateh Chand
Daswani & Ors.4 and, particularly, the following paragraphs of the report.

"67. If the
vendee intended to seek conveyance separately of the life interest of the
vendor, the earliest opportunity for him was when he had received notice 4
(2004) 6 SCC 537 dated 11-9-1979 sent through the lawyer by the vendor
cancelling the contract. Assuming that at that time he could not opt for lesser
relief as the suit for sanction was pending, he could have, in any case, opted
for conveyance of life interest of the vendor soon after he came to know of the
negotiations for sale with Bob Daswani, which took place in the presence of one
of the partners of the plaintiff vendee. Even after deriving the knowledge of
the execution of the sale deed dated 29- 12-1979 Ext. D-1, the option to obtain
lesser relief of transfer of life interest was not exercised. It was exercised
as late as on 25-11-1986 by filing an affidavit and at the time when pleadings
of the parties were completed and the joint trial in the two suits had already
commenced. During long pendency of the suits between 1979 to 1986, the parties
interested in the property changed their positions. The vendor by executing a
registered sale deed in favour of the subsequent vendee got his public dues
paid to relieve the pressure on the property and obtained market price of the
property. After obtaining possession of the property pursuant to the sale deed,
the subsequent vendee has raised construction and inducted tenants. Accepting
the legal stand based on Sections 90, 91 and 92 of the Indian Trusts Act that
the subsequent vendee, being a purchaser with knowledge of prior agreement, is
holding the property as a trustee for the benefit of the prior vendee, the
vendor, who changed his position by effecting a subsequent sale cannot be
compelled to convey his life interest when such lesser relief was not claimed
at the earliest opportunity and the terms of the contract did not contemplate
transfer of life interest alone."

98. The above
argument has no merit and the aforesaid decision is hardly of any help to the
vendee. This is not a case where the vendor had only right of spes successionis
and after execution of agreement of sale, he subsequently acquired full
interest in the property to be held bound by Section 43 of the Transfer of
Property Act. In the case before us, the reversioners were not parties to the
agreement of sale. When in the suit for sanction to transfer their interest
they were made parties and were noticed, they expressly objected to the 21
proposed transfer. No principle of estoppel or provisions of Section 43 of the Transfer
of Property Act can, therefore, operate against them. So far as the subsequent
vendee is concerned, in the course of suit, he was pushed to a position in
which he could not take a stand that he had no knowledge of the prior agreement
with the vendee but he has separately purchased life interest from the vendor
and obtained separate release deeds, on payment of consideration, from the
reversioners. The reversioners being not parties to the sale agreement, Ext.
P-1 entered into with the vendee, the latter could not enforce the contract,
Ext. P-1 against the former." It is sufficient to say that the agreement
of sale and the facts which their Lordships had to consider in the case of HPA
International4 were in many respects different from the agreement in the
present case. In that case vide agreement of sale (Exhibit P1) therein, full
interest in the property, i.e. life interest of the vendor and spes successionis
of reversioners with sanction of the court was agreed to be sold. The
reversioners were not parties to the sale agreement that was entered with the
vendee therein. The parties were conscious that the vendor had only life
interest in the property and he could not convey more than his own interest.
The court found that vendee entered into a speculative deal for obtaining full
interest in the property depending upon the sanction to be granted by the
court. In the backdrop of these facts, this Court observed in paragraphs 68, 69
and 70 of the report thus :

"68. On duly
appreciating the evidence on record, construing specific terms of the contract
and considering the conduct of the parties, we have arrived at the conclusion
that the rescission of the contract, due to non-grant of sanction by the Court
within two years after execution of the contract and filing of the suit for
sanction, was not an act of breach of contract on the part of the vendor to
justify grant of relief of specific performance of the contract to the prior
vendee.

69. We are also of
the view that the plaintiff vendee, by his own act in the pending suits, was
responsible for rendering the suit for sanction as infructuous. He was guilty
of lapse in not seeking conveyance of life interest of the vendor at the
earliest opportunity when notice of rescission of the contract was received by
him and later when he derived the knowledge of execution of registered sale
deed in favour of the subsequent vendee. The option was exercised conditionally
in the midst of the joint trial of the two suits.

70. There was one
integrated and indivisible contract by the vendor to convey full interest in
the property i.e. his own life interest and the interest of the reversioners
with sanction of the Court. As the Court had not granted the sanction, the
contract could not be specifically enforced. The lesser relief of transfer of
life interest was not claimed within a reasonable time after the vendor had
intimated that the contract, as agreed for full interest, was not possible of
performance. We find that neither equity nor law is in favour of the plaintiff
vendee."

The Court further
observed in paragraph 100 of the report as follows :

1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

11.

12.

13.

14.

15.

16.

17.

18.

19.

20.

21.

22.

23."100.
In the case before us, we have not found that the vendor was guilty of
rendering the suit for sanction infructuous. It did terminate the contract
pending the suit for sanction but never withdrew that suit. The vendee himself
prosecuted it and rendered it infructuous by his own filing of an affidavit
giving up his claim for the interest of reversioners. In such a situation where
the vendor was not in any manner guilty of not obtaining the sanction and the
clause of the contract requiring the Court's sanction for conveyance of full
interest, being for the benefit of both the parties, the contract had been
rendered unenforceable with the dismissal of the sanction suit."

HPA International2

24.,
thus, have no considerable bearing on the case in hand.

25.Mr.
A.T.M. Sampath, learned counsel for vendor's wife also argued that she had
offered as joint owner to the undivided entire property to purchase the half
share of her husband under the Partition Act, 1893 and Hindu Succession Act,
1956. He would submit that at the earliest point of time both in a notice as
well as in the written statement she has raised the plea of pre-emption to buy
her husband's share and demanded the vendee as well as her husband to sell
undivided half share to her. In this regard, he further submitted that the
property is an undivided dwelling house and the court should not grant specific
performance against the co-owners of the family dwelling house. 24 He relied upon
Ghantesher Ghosh v. Madan Mohan Ghosh & Ors.5, Pramod Kumar Jaiswal and
Ors. v. Bibi Husn Bano and Ors.6 and Shanmughasundaram & Ors. v. Diravia
Nadar (Dead) By LRs. & Anr.7.

26.The
above submission was also canvassed before the High Court. The High Court
considered this aspect in the following manner :

"It is too
premature for the defendant to have invoked the provisions of section 4 of the Partition
Act. The plaintiff's right has not been crystallized yet and he cannot at this
stage be considered as a purchaser of the undivided interest of the first
defendant. In order to validly invoke section 4 of the Partition Act, the
following five conditions have to be satisfied :

1. A co-owner having
undivided share in the family dwelling house should effect transfer of his
undivided interest therein;

2. The transferee of
such undivided interest of co- owner should an outsider or stranger to the
family;

3. Such transferee
much sue for partition and separate possession of the undivided share
transferred to him by the co-owner concerned;

4. As against such a
claim of the stranger transferee, any member of the family having undivided
share in the dwelling house should put forward his claim of preemption by
undertaking to buy out the share of such transferee and;

5 (1996) 11 SCC 446 6
(2005) 5 SCC 492 7 (2005) 10 SCC 728 25

5. While accepting
such a claim for preemption by the existing co-owners of the dwelling house
belonging to the undivided family, the Court should make a valuation of the
transferred share belonging to the stranger transferee and made the claimant
co-owner pay the value of the share of the transferee so as to enable the
claimant co-owner to purchase by way of pre-emption and said transferred share
of the stranger transferee in the dwelling house belonging to the undivided
family so that the stranger-transferee can have no more claim left for
partition and separate possession of his share in the dwelling house and
accordingly can he effectively deny entry in any part of such family dwelling
house.

The whole object
seems to be to preserve the privacy of the family members by not allowing a
stranger to enter in a part of the family dwelling house. Such is not the
situation obtaining in this case having regard to the context. I am reinforced
in my above view by the judgment of the Apex Court in Babulal V. Habibnoor
Khan, 2000 (5) SCC 662. The apex Court placing reliance upon its earlier
judgment in Ghantesher Ghosh V. Madan Mohan Ghosh, 1996 (11) SCC 446 reiterated
the five essential requisites. For the foregoing reasons, the contention of the
learned counsel merits no consideration." In our opinion, the High Court
has rightly concluded that at the present stage, Section 4 of the Partition
Act, 1893 is not attracted. It is only after the sale deed is executed in
favour of the vendee that right under Section 4 of the Partition Act, 1893 may
be available. Similarly, insofar as vendee is concerned, he has right to apply
for partition of the property and get the share demarcated only after sale deed
is executed in his favour. Section 44 of the T.P. Act is also of no help to the
case of vendor's wife.

27.There
are two other points raised by Mr. A.T.M. Sampath. Learned counsel for the
vendor's wife would contend that it has not been proved that vendee has been
ready and willing to purchase the property all along; the vendee did not produce
passbook showing that he had sufficient funds and the vendee did not deposit
the remaining consideration of Rs. 90,000/- within three months of the decree
granted by the trial court. The argument of Mr. A.T.M. Sampath has no merit at
all and seems to have been raised in desperation. As a matter of fact, as early
as on March 30, 1984, the vendee sent a notice to the vendor calling upon him
to receive the balance sale consideration of Rs. 90,000/- from him and execute
the sale deed. In the plaint, a specific averment with regard to readiness and
willingness has been made by the vendee which was not even controverted by the
vendor in the written statement. No such issue has been raised nor it was
pressed by the vendor before the trial court. Even the vendor's wife in the
appeal before the High Court did not raise any argument in this regard. At the
27 time of hearing of these appeals, we were informed by the counsel for the
vendee that the balance sale consideration of Rs. 90,000/- has been deposited
by the vendee on July 18, 1991 vide T.R. Challan No. 1159 before the trial
court and has been lying there for more than 19 years. This argument of Mr.
A.T.M. Sampath is, therefore, rejected.

28.The
other point argued by Mr. A.T.M. Sampath is that the decree granted by the High
Court would result in hardship since the vendor and vendor's wife are dead and
their 10 daughters are residing in the property. We are afraid these facts
hardly constitute hardship justifying denial of decree for specific performance
to the extent of vendor's half share in the property.

29.In
all fairness to Mr. A.T.M. Sampath, it must be said that he cited some English
decisions but, in our view, these decisions have no bearing at all in the
present case and it is for this reason that we have not burdened this judgment
by referring to those decisions.

30.In
view of the above, we agree that the decision of the High Court is right and,
consequently, both the appeals must be dismissed and are dismissed with no
order as to costs.